"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Thursday, March 29, 2012

Another Arbitration under the Indus Water Treaty 1960 betweeen India and Pakistan?

India has been planning to build a barrage across the mouth of the Wular Lake for almost three decades. The chief aim of the project has been to regulate the water storage and to maintain a proper depth in the Lake. This, according to news reports, would aid tourism and navigation across the Lake. The work on the project seems to have commenced in 1984. Pakistan seems to have objected to the project in 1986 resulting in suspension of works in 1987. Although India re-commenced work on the Lake, the work was stopped again in 2007 when Pakistan imposed suspension as a pre-condition for discussions on the project. Both countries have held about eight rounds of negotiations but nothing concrete has so far fructified. Pakistan's apprehension has been that the project is a storage project thereby bringing the Indus Water Treaty into play. River Jhelum, it may be noted, feeds the water to Wular Lake.Pakistan apprehends that the project would disrupt the canal projects of Pakistan. India's contention is two-fold: (1) Indus Water Treaty permits building structures for "non-consumptive use of navigation"; (2) the project is beneficial to Pakistan as there would be adequate water supply during the lean winter period.

India has been sharing technical details of the project but news reports suggest that India is frustrated over the response or the lack of it from Pakistan on the project. Therefore, India seems to have conveyed the message to Pakistan that it would go for arbitration in the project considering the prolonged delay in both countries arriving at a consensus. It may be noted that Pakistan had stated that the issue had to be resolved through a neutral expert or through arbitration in 1986.

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Jasmine writes about issues pertaining to public law . She teaches at NUJS, Kolkata and some of her areas of interest are interpretation of statutes and constitutional lawBadrinath Srinivasan (SSRN)

Badri writes about arbitration, contract law and other private law aspects. He works in a corporation. He is a Member, Chartered Institute of Arbitrators and an Associate, Insurance Institute of India. He can be contacted at lawbadri@gmail.com